Author
All subsequent applications must go through an admissibility procedure.[1] Under the Refugee Law, the competent authority for the examination of a subsequent application is the Asylum Service.
If an applicant submits a subsequent application or new elements or findings on their claim after a final decision was made, the competent authority does not treat these as a new application, but as further steps on the initial application.[2] In relation to the admissibility of the application, the Asylum Service conducts a preliminary examination to assess whether the submitted information constitutes new elements or findings which the Asylum Service did not already take into consideration when deciding on the initial claim.[3] This examination used to require an interview, however, the October 2020 amendment to the Law removed this requirement and the examination is now carried out without an interview.[4]
When the Asylum Service decides that the subsequent application or new elements or findings are admissible, it will continue with the substantive examination of these. The decision will only be considered as a new decision if the elements increase the chances of the applicant receiving international protection, and if the competent authority is satisfied that the applicant could not submit these elements in the initial examination, and especially during the stage of a recourse to the Administrative Court under Article 146 of the Constitution, due to no fault of his or her own.[5]
There are no specific time limits within which the Asylum Service must issue a decision on the admissibility of the subsequent application or new elements or findings.
Until recently it was considered that according to the Refugee Law, once a subsequent application is submitted, the applicant has a right to remain and access reception conditions during the examination of the admissibility of the subsequent application. Furthermore, and according to the Refugee Law, the Asylum Service may decide to terminate the right to remain and access to reception conditions if the applicant appears to have lodged a first subsequent application with the sole objective of delaying or impeding the execution of a decision which would lead to the immediate removal of the applicant from the RoC. The Asylum Service may also decide to terminate these rights if the applicant has lodged a second or further subsequent applications to the Asylum Service, following the issuance of a final decision declaring the first subsequent application inadmissible or after a final decision rejecting it as unfounded, provided that the Asylum service is satisfied that any decision to return or remove the person in question does not involve direct or indirect refoulement. In a 2021 case, the Administrative Court confirmed that once a subsequent application is submitted, the applicant retains the status of an asylum seeker.[6] However, the IPAC in several cases, held the opposite position, that even upon submission of a subsequent application, during the administrative examination of the application the applicant does not retain the status of an asylum seeker and it falls upon the discretion of the Head of the Asylum Service to decide on the applicant’s right to remain.[7]
In a 2022 case, the Supreme Court confirmed the position of the IPAC, that once a subsequent application is submitted, the applicant is not considered an asylum seeker, and until the administrative examination of the subsequent application, the discretion to examine the applicant’s right to remain in the Republic, belongs to the Head of the Asylum Service.[8] In case the Head decides that such a right to stay is not granted, they should make sure that in case the applicant is returned, this will not entail direct or indirect refoulement. [9] In practice, there is no evidence that such an assessment takes place and applicants are never informed about this. [10] Once, a subsequent application is submitted, including a first subsequent application persons do not have a right to remain and no access to any basic rights. In 2023 there were instances where police were present at the Asylum Service, arresting applicants of subsequent applications and transferring them directly to removal centres, with no evidence that any assessment of refoulement was carried out. This practice has since been abandoned.[11]
As regards the procedure, in 2020 the Asylum Service set up a procedure and introduced a form which applicants are required to submit. Thanks to this, the process of examining such applications initially became timelier, however due to the rise in such applications the processing time eventually increased. In early 2021, efforts were being made to reduce the backlog; however, this also had an impact on the quality of decisions, as CyCR identified cases rejected as inadmissible although the new elements justifiably could not have been submitted before, or would clearly increase the chances of the applicant receiving international protection.[12] In March 2021, the IPAC issued a decision considering that the Asylum Service had not followed the steps of the admissibility procedure prescribed by the Law, as the element was indeed new and should have been examined, and did increase the chances of receiving protection.[13]
In 2022, according to the Asylum Service, in an effort to speed up the procedure, 16 caseworkers were appointed to examine subsequent applications. Throughout 2022, the examination time for newly submitted subsequent application was 3-4 months however many applications submitted in prior years were still pending. In 2022, 357 applicants of subsequent applications were considered admissible and 3,909 inadmissible.
Due to the high numbers of subsequent applications submitted, in an effort to deter the submission of unfounded subsequent applications, the Asylum Service, in collaboration with the Police carried out arrests of persons approaching the Asylum Service to submit a subsequent application. It is not clear if all persons arrested were permitted to submit a subsequent application in detention. Such arrests took place for a period in early 2023 but the practice has since been abandoned.[14]
In 2023 a significant number of applications were examined in a timely manner some even within days. However, this mainly concerned applications that were evidently unfounded and there are still applications pending from previous years, including applications submitted by vulnerable persons and/or with elements that could add to the likelihood of an asylum-seeker qualifying as a beneficiary of refugee status or subsidiary protection.[15]
In 2023, 223 applicants of subsequent applications were considered admissible and 4,383 inadmissible.[16]
If the Asylum Service considers the subsequent application inadmissible, an appeal can be submitted before the IPAC. Such appeal, however, does not have automatic suspensive effect, and a separate application must be submitted to the IPAC requesting the right to remain pending the examination of the appeal. The procedure to submit such an application was not provided for in the procedural rules, until their amendment in 2022. Following the reasoning of the Administrative Court in a 2021 case,[17] the amended Regulations provide that the application for the right to remain must be submitted at the same time as the appeal, and in any case within the deadline for the submission of the appeal, which is 15 days.[18] The prescribed form for the application is provided for in the Regulations, as Form number 4. The Form can be found at the counter of the Registry of the IPAC, however, it is not always readily available and often requires the applicant to request it. In addition, there is no information materials provided by the IPAC regarding the need to file the right to remain application alongside the appeal, although the requirement to make such an application is included in the first-instance decision issued by the Asylum Service.
Furthermore, up until 2021 it was not clear whether a request to the IPAC for the right to remain does indeed have automatic suspensive effect as it does in other cases.[19] In March 2021, the IPAC decided that when a person submits a subsequent application and that application is found inadmissible, the decision to reject this person’s first asylum application, remains final and thus the person does not retain the asylum seeker status.[20] In August 2021, the IPAC differentiated between subsequent applications that are found inadmissible and manifestly ill founded, deciding that when a subsequent application is found to be inadmissible and the right to stay is terminated, the applicant does not have the right to remain during the pending of the deadline to submit an appeal against the decision, and neither until the Court decides on the request for the right to stay.[21] In 2022, the Supreme Court decision set the precedent, by reaffirming the position of the Administrative Court that the submission of a subsequent asylum application begins with the fact that the applicant is not an asylum seeker. It therefore starts with the status that the applicant had, after the rejection of the first asylum application became final.[22] If the applicant submits an interim application of the right to stay, the submission of such an application does not on its own suspend the removal decision.
[1] Article 16Δ Refugee Law.
[2] Article 16Δ(2) Refugee Law.
[3] Article 16Δ(3)(a) Refugee Law.
[4] Article 16Δ(2) Refugee Law.
[5] Article 16Δ(3)(b)(ii) Refugee Law.
[6] M.F. v. Republic of Cyprus, Case No.: 691/2021, 18 August 2021, available in Greek at: https://rb.gy/fdunmw.
[7] A.K.U. v. Republic of Cyprus, Case No.: ΔΚ24/21, 12 April 21, available in Greek at: https://rb.gy/xmdrq6; H.S. v. Republic of Cyprus, Case No.: ΔΚ29/21, 13 August 2021, available in Greek at: https://rb.gy/khesfg.
[8] Appeal against the decision of the Administrative Court No. 8/2022, Sohel Madber v. Republic of Cyprus, 17 November 2022, available in Greek at: https://rb.gy/xrdoyp.
[9] 16Δ (4)(a), Refugee Law.
[10] Information provided by the Cyprus Refugee Council.
[11] Ibid
[12] Based on cases represented by the Cyprus Refugee Council.
[13] IPAC, Decision 782/2020 J.Y.v. Republic of Cyprus (Asylum Service), 5 March 2021, available in Greek at: https://bit.ly/3Tsqcnt.
[14] Information provided by the Cyprus Refugee Council.
[15] Information provided by the Cyprus Refugee Council.
[16] Information provided by the Asylum Service.
[17] Miah v. Republic of Cyprus, Case No. 593/21, 19/07/2021, 19 July 2021, available in Greek at: https://rb.gy/ukfcag.
[18] Article 13 of the IPAC’s amended Regulations (as amended in October 2022).
[19] Α.K.U. ν. Republic of Cyprus, Case No.: ΔΚ 24/21, 12 April 2021, available in Greek at: https://bit.ly/3wMV2Od and SINGH ν. Ministry of Interior and others, Case No.: 730/2021, 23/8/2021.
[20] A.K.U. v. Republic of Cyprus, Case No.: ΔΚ24/21, 12 April 2021, available in Greek at: https://rb.gy/xmdrq6
[21] H.S. v. Republic of Cyprus, Case No.: ΔΚ29/21, 13 August 2021, available in Greek at: https://rb.gy/khesfg
[22] Appeal against the decision of the Administrative Court No. 8/2022, Sohel Madber v. Republic of Cyprus, 17 November 2022, available in Greek at: https://rb.gy/xrdoyp.